United States v. Albert Hernandez, Jr.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10147
Plaintiff-Appellee, D.C. No.
2:12-cr-00254-JCM-PAL-1
v.
ALBERT SILVA HERNANDEZ, Jr., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted November 18, 2019**
Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.
Albert Silva Hernandez, Jr., appeals from the district court’s judgment and
challenges the 262-month custodial sentence and lifetime term of supervised
release imposed upon remand for resentencing following his jury-trial conviction
for eight counts of sexual exploitation of a child, in violation of 18 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 2251(a) & (e). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Hernandez contends that the district court erred by denying his request for
an acceptance of responsibility adjustment under U.S.S.G. § 3E1.1. Contrary to
Hernandez’s contention, the district court did not conclude that Hernandez was
precluded from receiving the adjustment because he went to trial. Rather, the
record reflects that the district court denied the adjustment based on its assessment
that Hernandez’s pre-trial conduct undermined his post-trial expressions of
remorse. This was not an abuse of discretion. See U.S.S.G. § 3E1.1 cmt. n.2;
United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc)
(application of the Guidelines to the facts is reviewed for abuse of discretion).
Moreover, Hernandez has not demonstrated any factual misunderstanding by the
district court regarding events that occurred prior to trial affected its decision to
deny the adjustment or the sentence imposed. See United States v. Christensen,
732 F.3d 1094, 1101-03 (9th Cir. 2013).
Hernandez next contends that the district court erred by failing to respond to
his arguments or explain its reasons for imposing a lifetime term of supervised
release. We review for plain error, see United States v. Valencia-Barragan, 608
F.3d 1103, 1108 (9th Cir. 2010), and conclude that there is none. The record
reflects that the district court considered Hernandez’s arguments and its reasons for
imposing a within-Guidelines custodial sentence and lifetime term of supervision
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are apparent from the record. See United States v. Carty, 520 F.3d 984, 992 (9th
Cir. 2008) (en banc) (adequate explanation may be inferred from the record as a
whole).
Finally, Hernandez contends that his sentence is substantively unreasonable.
The district court did not abuse its discretion. See Gall v. United States, 552 U.S.
38, 51 (2007). The sentence is substantively reasonable in light of the 18 U.S.C.
§ 3553(a) factors and totality of the circumstances, including the seriousness of the
offense. See Gall, 552 U.S. at 51; see also United States v. Williams, 636 F.3d
1229, 1232-34 (9th Cir. 2011) (lifetime term of supervised release may be imposed
on an offender who commits sexual crimes against children).
AFFIRMED.
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